Software Patent of the Week: Burst of Obviousness

Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. Before I get to this week’s patent, I wanted to note that the Public Patent Foundation has launched Software Patent Watch, a new blog that tracks the software patent problem. On Tuesday they announced that the patent office has broken the all-time record for software patents in a single year, and is on track to issue 40,000 patents by year’s end. That’s more than 100 software patents per day.

Luckily, none of those tens of thousands of patents produced any high-profile litigation this week, so I thought I’d cover one of the classics of recent software patent litigation, Microsoft’s (and now Apple’s) legal battle with Burst.com. Burst sued Microsoft back in 2002, claiming that Microsoft’s Windows Media software violates its patents. Microsoft settled the dispute last year, and Burst turned its legal guns on Apple in April, claiming that Apple stole the same “technology.”

Here is the newest of the four patents Burst is suing Apple over. It’s actually a little bit difficult to tell from the patent text how it relates to Burst’s dispute with Apple. The patent covers:

An improved video recorder/transceiver with expanded functionality (“VCR-ET”) including a capability for storing video and video programs in digital format, editing such programs, transferring such programs onto a hard copy magnetic media, and transmitting such programs to a remote location using a second VCR-ET. The increased functionality is realized through the use of analog to digital conversion, signal compression and intermediate storage in an integrated circuit, random access memory. The recorder/transmitter has capabilities to transmit and receive program information in either a compressed or decompressed format over fiber optic lines, conventional phone lines or microwaves.

Construed broadly, this seems to be a patent on all technology related to video transmission.

Fortunately, Burst hasn’t been shy about explaining how its patents applied to Microsoft’s (and now Apple’s) technology. The patent mentions transmitting video “in a burst transmission time period that is substantially shorter than a time period associated with real time viewing.” During the Microsoft dispute, Burst claimed that they invented “faster-than-real-time delivery” of media content, and that Microsoft copied their technology after Burst showed them a technology demo in the hopes that Microsoft would license Burst’s software. This is nonsense, as an excellent 2002 blog post explained:

Burst.com claimed to have a revolutionary way of delivering streaming content. Lossless. Faster than realtime.

Well, golly. You can deliver content losslessly and faster than real time via HTTP and FTP, too. Only Burst.com did this with a magical, proprietary protocol that required a magical, proprietary server that they would be happy to sell to you. The secret of the “secret sauce” that Burst.com CEO Richard Lang mentions in the feature is that there is no secret sauce.

Mr. Lang believes that Microsoft was out to get him. However, the reality is that Burst.com was, at best, a fly to Microsoft’s mountain.

Now Burst.com is suing Microsoft, a move apparently prompted by Windows Media 9’s “Instant On” feature. If you have a really fast conneciton and there are no bottlenecks along the way, it lets you see/hear media almost instantly. It works by putting a huge buffer at the client, and then filling that buffer as fast as possible so that buffering time is minimized.

It’s really hard to overstate how obvious this “invention” is. This isn’t just an obvious enhancement to video streaming. It’s the obvious way to design video player software if you expect your bandwidth to substantially exceed the rate required to play the video at full speed. It’s absolutely ridiculous that the Patent office gave them a patent for it.

Update: Wow, I mangled this when I wrote it last night, accidentally putting part of my commentary in the blockquote. It should make a lot more sense now.